Porter v. South Carolina Public Service Commission

507 S.E.2d 328, 333 S.C. 12, 1998 S.C. LEXIS 146
Supreme Court of South Carolina·Decided October 26, 1998·No. No. 24847·Published·Cited by 13 cases

Opinion

WALLER, Justice:

This is a utility rate case. We affirm in part and reverse in part.

PROCEDURAL POSTURE

The South Carolina Public Service Commission (PSC) reviewed BellSouth Telecommunication’s (BellSouth’s) earnings in 1994, a test year used to determine future rates. Based on that review, PSC adjusted certain revenues and expenses of BellSouth and ordered the company to reduce its future rates by $42.3 million annually. Philip S. Porter (Consumer Advocate) filed a petition for review of PSC’s orders in circuit court. The circuit court affirmed PSC’s orders with the exception of one issue, which the circuit court reversed. Consumer Advocate and BellSouth now appeal the circuit court’s judgment.

ISSUES

1. Did the circuit court err in affirming PSC’s decision on the rate of return on common equity?

2. Did the circuit court err in affirming PSC’s calculation of BellSouth Advertising and Publishing Co. revenue?

3. Did the circuit court err in affirming PSC’s treatment of cash working capital?

4. Did the circuit court err in affirming PSC’s decision on the annualization of salary and wage expenses?

5. Did the circuit court err in reversing PSC’s decision to include Area Plus losses in test-year calculations?

1. RATE OF RETURN ON COMMON EQUITY

Consumer Advocate contends the circuit court erred in affirming PSC’s decision on the rate of return on common equity because that decision was not adequately documented in findings of fact or supported by substantial evidence. We agree.

[19]*19A PSC staff economist testified PSC should set the rate of return on common equity1 between 11.5 percent and 12 percent. An economist hired by Consumer Advocate testified PSC should set the rate between 10.4 percent and 11.6 percent. In calculating the rate, both economists compared Bell-South with other telephone companies. They did not include “flotation costs” associated with issuing stock because Bell-South Telecommunications, a subsidiary of the publicly held BellSouth Corp., had no plans to issue stock. An economist hired by BellSouth testified PSC should set the rate between 13.71 percent and 13.95 percent. In calculating the rate, BellSouth’s economist compared the company with non-regulated, non-utility companies such as McDonald’s Corp., Procter & Gamble Co., Knight-Ridder Inc., and Pfizer Inc. He also included flotation costs associated with issuing stock.

In Order No. 95-1757, PSC set the rate of return on common equity at 12.75 percent, finding that rate to be “fair and reasonable” to BellSouth, the company’s stockholders, and the company’s customers. PSC described the three economists’ testimony and outlined established legal principles the agency must use in determining a fair rate of return. PSC agreed with its staff economist and Consumer Advocate’s economist that “telecommunications companies are a better comparison group with BellSouth than the various non-utility surrogates favored by [BellSouth’s economist].” PSC also agreed it would be improper to include costs of issuing stock in calculations in this case. PSC stated its decision was based on “evidence presented by the witnesses and current economic conditions.”

Consumer Advocate in a petition for rehearing urged PSC to set the rate no higher than 12 percent — the highest estimate recommended by the two economists upon which PSC relied in its order. In response, PSC issued Order No. 96-75, [20]*20deleting from its previous order the above sentence in which it agreed with the two economists about the proper comparison group. PSC concluded the 12.75 percent rate was proper because it fell within the overall range recommended by all three economists (10.4 percent to 13.95 percent).2 The circuit court affirmed PSC’s order.

Consumer Advocate now contends PSC issued orders without properly explaining its reasoning in findings of fact based on substantial evidence in the record. Consumer Advocate argues PSC offered no rationale for its decision after modifying the original order to delete any reference to its reliance upon the two economists’ testimony.

This Court employs a deferential standard of review when reviewing a PSC decision and will affirm that decision when substantial evidence supports it. Heater of Seabrook, Inc. v. Pub. Serv. Comm’n of South Carolina, 324 S.C. 56, 60, 478 S.E.2d 826, 828 (1996); Hamm v. South Carolina Pub. Serv. Comm’n, 309 S.C. 282, 422 S.E.2d 110 (1992). This Court may not substitute its judgment for PSC’s on questions about which there is room for a difference of intelligent opinion. Because PSC’s findings are presumptively correct, the party challenging a PSC order bears the burden of convincingly proving that the decision is clearly erroneous, or arbitrary or capricious, or an . abuse of discretion, in view of the substantial evidence on the whole record. Heater of Seabrook, Inc., supra; Patton v. South Carolina Pub. Serv. Comm’n, 280 S.C. 288, 290, 312 S.E.2d 257, 259 (1984); S.C.Code Ann. § l-23-380(A)(6) (Supp.1997).

Substantial evidence is relevant evidence that, considering the record as a whole, a reasonable mind would accept to support an administrative agency’s action. Substantial evidence exists when, if the case were presented to a jury, the court would refuse to direct a verdict because the evidence raises questions of fact for the jury. It is more than a mere scintilla of evidence, but is something less than the weight of [21]*21the evidence. Furthermore, the possibility of drawing two inconsistent conclusions from the evidence does not prevent a court from concluding that substantial evidence supports an administrative agency’s finding. Hamm v. South Carolina Pub. Serv. Comm’n, 315 S.C. 119, 122, 432 S.E.2d 454, 456 (1993); Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 307 (1981).

This deferential standard of review does not mean, however, that the Court will accept an administrative agency’s decision at face value without requiring the agency to explain its reasoning. In determining a fair rate of return on common equity, for example, PSC must fully document its findings of fact and base its decision on reliable, probative, and substantial evidence on the whole record. Porter v. South Carolina Pub. Serv. Comm’n, 332 S.C. 93, 504 S.E.2d 320 (1998); S.C.Code Ann. § 58-5-240(H) (Supp.1997).

“An administrative body must make findings which are sufficiently detailed to enable this Court to determine whether the findings are supported by the evidence and whether the law has been applied properly to those findings.” Porter, supra; Hamm v. South Carolina Pub. Serv. Comm’n, 309 S.C. 295, 422 S.E.2d 118 (1992); S.C.Code Ann. § 58-9-1160 (1976). “Where material facts are in dispute, the administrative body must make specific, express findings of fact.”

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Porter v. South Carolina Public Service Commission, 507 S.E.2d 328, 333 S.C. 12, 1998 S.C. LEXIS 146 (S.C. 1998).

507 S.E.2d 328 (Porter v. South Carolina Public Service Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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